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Undefended Hearings in Family Law

When one party in family law proceedings fails to appear in court whether at the interlocutory, application in a case or final hearing, the court may order an undefended hearing.

Simply because an undefended hearing is listed, it does not follow that the orders sought by the participating party will be made by the Court.

In determining what orders to make, the Court will ensure that the absent party is allowed procedural fairness. As such it is imperative for the attending party to ascertain, amongst other items noted below, that the absent party was properly put on notice that the undefended hearing is listed and will be heard in his or her absence.

Important Considerations for an Undefended Hearing

The solicitor of the attending party (if acting for the applicant) must prepare an affidavit proving service of the Application together with another affidavit proving that notice has been given to the other party in relation to the undefended hearing.

Irrespective of the other party’s absence at the hearing, the attending party must still make submissions before the Court to satisfy the Court in respect of the relevant facts of the case and the orders sought by the attending party.

The submissions are of particular importance in circumstances that the other party is not present to contest the facts or the orders sought and it is totally up to the attending party to satisfy the Court that such orders should be made.

Accordingly the attending party is required to provide to the court sufficient and appropriate evidence to establish:

In Property matters:

the nature and valuation of the parties assets and liabilities;

contributions;

future needs;

earning capacities;

health issues;

and other particular circumstances that would be relevant to the case;

the orders sought are just and equitable in the circumstances of the case;

In Parenting matters:

best interests of the children;

meaningful relationship with both parents;

protecting children from physical and psychological harm from being subjected or exposed to abuse, neglect or family violence;

the nature of relationship between the children and the parents and the extent of the fulfilment of the parent’s obligations to maintain the children

other relevant legal issues.

In circumstances that there is a dispute between the parties as to the value of the property or any other valuable assets owned by each of the parties, an expert valuation report may be required to satisfy the Court as to the accurate appraisal.

Similarly if there any health issues it is recommended that an expert report is obtained earlier in the proceedings to allow the expert sufficient time to prepare the report.

Case Law in Relation to Undefended Hearings

Zane & Allan [2008] FamCAFC 115

This case was heard at the final hearing without appearance of the Respondent. The court set out a number of legal principles in relation to undefended hearing namely that the participating party (in this case the Applicant) had still a duty to the court to make full disclosure, act in good faith and provide the court with admissible evidence. It was further held that the Court in making a decision must give regard to all evidence before the Court that was filed by the absent Respondent.

In Barnes & Barnes [2015] FCCA 2528 where the Respondent Husband refused to attend the directions hearing and file his evidence in relation to the property issues, the matter was listed for an undefended hearing.

His Honour referred to Zane & Allan in respect of an undefended hearing and held that:

“… an important principle derived from Zane & Allan, however, is the recognition that a Court does not have to insist on detailed evidence, make elaborate findings and give detailed reasons in undefended matters, that it must be satisfied the evidence supports its findings and Orders.”

Death of a Party to a Property Settlement

Section 79(8) of the Family Law Act 1975 deals with the circumstances that the party to a family law property settlement proceedings dies. Under

S 79(8)(b) in determining an application for property settlement by way of the deceased’s legal representative, the Court will consider what would have been the appropriate orders had the deceased not died and whether or not such orders would be appropriate in circumstances that the party has deceased. It follows that the orders made by the Court in those circumstances will be binding on the estate of the deceased.

In determining such orders in the property settlement proceedings, the Court is still required to be satisfied that “…in all the circumstances, it is just and equitable” to do so.

Family Law Lawyers Sydney at Pavuk Legal can provide you with legal advice in respect of a range of Family Law matters including undefended hearings and complex cross-jurisdictional matters.

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